John RobinAnd UW 2009, is a partner in by Briesen & Robert in Wauskesha, where he focuses on labor law and employment.
The National Labor Relations Board recently announced updated guidance on whether student-athletes in academic institutions are considered employees with the right to organize. John Rubin discusses the new guidelines and makes practical suggestions for academic institutions in light of the Declaration.
On September 29, 2021, the National Labor Relations Board (NLRB) issued General Counsel Jennifer A. Abruzzo (Board of Directors) Memorandum GC 21-08 – Legal Rights of Players in Academic Institutions (Student Athletes) under the National Labor Relations Act.
At the discretion of the Public Prosecutor’s Office in relation to the National Labor Relations Act (the Act), Abruzzo has clarified her position that some “players in academic institutions” in the scholarship – known as “student-athletes” – are covered by law, with the right to form unions and participate in activities Another protected coordinator in relation to their working conditions.
This article provides a brief overview of the GC Guidelines along with practical suggestions for academic institutions in light of the Declaration.
A brief history of the council’s precedent
While professional sports such as Major League Baseball and the National Football League have long been standardized, the NLRB has never before addressed college athletes’ coverage of scholarships by law.
in a Northwestern UniversityAnd1 First Impression Case – The board of directors rejected a Northwestern University footballers’ petition for union representation on court grounds, leaving the question of whether college athletes were included employees for another day.
In response, GC Richard F. Griffin Jr. Then, GC Memorandum 17-01, concluded that soccer players who receive a scholarship are entitled to coverage under the law as employees. With the change in management, Griffin’s successor, Peter B. Robb, rescinded this memo, leaving the agency without an official position on the issue for the time being.
With the release of GC Note 21-08, Abruzzo expects that “the public, particularly players in academic institutions, colleges, universities, sports conferences and the National Collegiate Athletic Authority” will be notified of its intention to administer the law in accordance with its opinion, including by way of investigations and prosecutions of unfair business practices. fair when required.
However, it remains to be seen if the NLRB will agree to Abruzzo’s position, when and if an appropriate issue arises before him.
Rationale for GC: Student-athletes are included employees
Objecting to the term “student-athlete” as an excuse “to deny these individuals protection in the workplace”, Abruzzo considers Student-Athlete Scholarships to be akin to “professional athletes” who are “employed by an exercise team” as a “commercial enterprise” which capitalize on their fame.” Alternatively, GC’s preferred term for these individuals is “players in academic institutions.”
Applying the expanded definition of “employee” under Section 2(3) of the Act as “any employee” unless specifically excluded, Abruzzo notes that footballers and students are not specifically excluded. Therefore, for GC, it complies with the language and policies of the law to extend coverage to players in academic institutions.
Furthermore, under the common-law concept of an employee, players in academic institutions provide services to their colleges and the NCAA in exchange for compensation in the form of financial assistance, under the control of their educational institutions, as well as the NCAA and the Athletic Conference. Policies and rules.
For example, players are typically subject to minimum average point scores, training schedules and competition hours, and penalties for misconduct, which can result in exclusion from the team or forfeiture of the scholarship. Therefore, from the reasons for GC, scholarship athletes are subject to employer oversight.
Additionally, Abruzzo highlights the changing societal and legal landscape of college athletics, effectively rendering the concept of an amateur student-athlete effectively outdated. With the Supreme Court invalidating some NCAA rules on antitrust grounds,2 The NCAA’s subsequent change in policy regarding rules for players’ name, image, and likeness, and recent interest in social and racial justice issues in college sports teams, players have gained more power because they better understand their value.
Abruzzo’s position acknowledges this new reality.
GC will consider extending coverage to state schools
Section 2(2) of the law excludes public sector employers: Public schools that act as employers are normally exempt from NLRA coverage. However, Abruzzo notes that state school athletes are also under the control of NGOs such as the NCAA, as well as individual sports conferences, under the common law definition of an employee.
Therefore, Abruzzo indicated that it would “consider” extending the NLRA to include scholarships for athletes in public schools based on the theory of joint employer responsibility. Furthermore, Abruzzo will also “consider” suing a sports congress or association even if some of the member schools are state institutions.
However, no additional guidance has been provided regarding the factors a GC will consider in making this “joint-employer” decision.
Practical effects of college athletics
It is important to remember that NLRA rights apply to both unionized and nonunion employers.
Furthermore, the NLRA not only protects union and union activities in the workplace. Section 7 of the NLRA also protects concerted action directed at wages, hours, and other working conditions.
It is unlawful for an employer to retaliate against an employee for engaging in activities protected by the NLRA. It is also illegal for an employer to engage in a wide range of behavior and statements that could be considered “chilling” employees in exercising their rights in the NLRA—even with innocent intent.
Statements or impermissible behavior by a supervisor or agent in the organization can constitute unfair business practice in and of themselves, and may also be used as evidence of “hostility” against the protected activity in litigation.
In the context of a college sports team, coaching staff and management are more likely to be considered supervisors. Since many coaches and administrators may not be familiar with the requirements of the NLRA, it may be useful to conduct training with these individuals, so that they can understand what they should and should not do in the event of workplace protests or union organizing activity on their team.
And in the case of any emerging union organization or group action, training supervisors to understand the NLRA standards will be critical to reducing the risk of unfair labor practice fees.
Furthermore, with college athletes considered a place of employment, teams are encouraged to consider that team decisions—both on and off the field—and enforcement of team rules may constitute “adverse hiring actions.” As HR professionals know, documenting and investigating hiring decisions is a common best practice to reduce potential exposure.
Decisions regarding game schedules, locker allocation, rooms, meals, playing time, and seating conditions may be considered “employment decisions”, which lead to retaliation in the event of the protected activity.
And in a context represented by the Federation, such topics would likely become mandatory topics for negotiation with the Federation, in addition to NCAA practice and competition hours, scholarship eligibility, academic standards, compensation limits, minimum average points, limitations on gifts, and paths of activities. Daily players, penalties for violations that may lead to the loss of the scholarship.
What remains is whether the GC position will affect other state and federal agencies regarding coverage under other labor and employment laws, such as unemployment insurance, workers’ compensation, hourly wages, equal employment, and family medical leave laws.
Considerations in Anticipating Potential Enforcement Actions
While the NLRB has yet to conclusively rule on the status of scholarship student-athletes, and the NLRB’s decisions are subject to appeals in federal courts, the GC and NLRB still retain significant control over employment policy from a practical point of view, given investigation and prosecution. Discretion.
The school may quickly find itself embroiled in a costly NLRB investigation if a charge is filed. Schools may wish to consider the following action points in light of the GC position:
- Review team rules and handbooks to ensure compliance with current or projected NLRB standards for workplace rules – many rules can be considered disallowed regarding topics such as confidentiality, non-disparagement, solicitation, distribution, uniform policies, camera, mobile phones, and social media.
- Ensure consistent application of team rules to avoid allegations of differentiated treatment and enforcement to minimize exposure to unfair labor practices in the case of regulation or other protected activity.
- Avoid informing scholarship student athletes that they are not “employees” subject to the NLRA. The GC will pursue accusations of “misclassification” if the college leads covered athletes to believe they are not covered by the NLRA. Teams may wish to avoid using the objectionable term “student-athlete” altogether, as it could be taken as evidence of unfair labor practice without further attribution.
- Religious educational institutions may wish to review and review their policies and websites in order to emphasize the religious message of their organizations in order to qualify for religious exemption from the NLRA.
- Teams should consider that non-athletes who receive scholarships or financial assistance to perform services to the school may also be considered “employees” under the GC’s rationale. This may include music clubs, cheerleaders, and any other extracurricular activity authorized by the school for which the student receives a benefit that may be considered “compensation.”
- Develop an action plan and media relations strategy in case the activity is organized.
Originally Posted on the Wisconsin Department of Labor and Employment Law Blog and republished with the authors permission